It’s Over

Posted Thu, May 28th, 2009 12:46 pm by Tom Goldstein

Basically before it ever started, the fight over the confirmation of Sonia Sotomayor is done.She is going to be confirmed by a relatively wide margin and without a substantial, mainstream assault on her credentials or suitability for the bench.

To be clear at the outset, this is a descriptive point, not a normative one.I'm explaining the political reality, not how the process should go forward.I actually think that nominees should be subject to a substantial, sustained inquiry into their judicial philosophy and intellect.

But that isn't the world in which we live, or in which this particular nomination will proceed.The phase of defining a nominee in the public's eye now lasts around forty-eight hours.In that time Harriet Miers was pretty much done "“ finished.By this point, there has been a huge amount of press coverage and opponents have had the opportunity to make their case.It's a shockingly short period (unfortunately so), but it reflects (a) the ready availability of research materials, and (b) the rapid turn-over of news cycles.

For a nominee like Sonia Sotomayor, that is the life-or-death period.Once the public is comfortable with her suitability, then the irreducible political reality is that there is no serious prospect of vigorously challenging the nation's first Latina Supreme Court nominee when the President's party has an overwhelming numerical advantage in the Senate.

The collapse of serious opposition also becomes a self-fulfilling prophesy.Potential donors to conservative advocacy groups "“ perceiving neither a grave threat to their core values nor a real prospect of wounding an opposing President by defeating the nomination "“ will minimize their financial support, particularly in this economy.

Without a public drumbeat of concern "“ and with the press's attention inevitably shifting away "“ the opposition outside the circle of committed advocates is almost certain to run out of gas by the weekend, a full five or six weeks before the hearings begin.There could be a burst of revitalizing energy with the disclosure of some ethical transgression, but zero reason to believe that will actually happen.

The tactics of the White House in identifying and announcing the nominee were critical as a result.The President made his choice on Monday, and made the announcement first thing Tuesday.There were no leaks, and no reprise of President Clinton's difficulties in finding someone who would accept.

The unexpected speed of the announcement caught opponents basically flat-footed.No organized effort had been made by groups like the Committee for Justice or the Judicial Confirmation Network to develop a coherent narrative about Judge Sotomayor that could take hold.They fell back on a few isolated statements by Judge Sotomayor (a sentence in a YouTube clip and another in a Berkeley speech) that were easily dismissed and the Ricci case (in which she did not write anything and which comes across as a close and difficult case).

With messengers like Rush Limbaugh and Newt Gingrich, and a message that Judge Sotomayor is a racist, conservatives were talking just to themselves and sounding silly to everyone else.Statements like Curt Levey's that there was a realistic prospect that Judge Sotomayor would have to withdraw her nomination just sounded stupid or willfully ignorant.

As I've said before, I also think that opponents had relatively little to work with.Judge Sotomayor's record actually shows genuine balance, so it's easy to answer claims that she is a liberal ideologue with lots of opinions that don't fit that mold.And the fact that she hasn't written directly on most of the hot-button social issues "“ abortion, gay rights, the death penalty, and separation of church and state "“ left conservatives without a ready rallying point.

If conservatives could have developed a coherent narrative, it is possible (but unlikely) that they would have had a chance.The downside to the White House's own speed in launching the nomination was that it wasn't always ready with clear and concise answers to the few charges made against her.But opponents came with a knife to a gun fight against a political playing field tilted dramatically against them, with 60 Democratic Senators ultimately choosing the victor.It would have been very difficult to make the contest close, and they didn't.

I do think (thankfully) that there will be close questioning of Judge Sotomayor at the hearings on the substance of her views about jurisprudence.As is now the tradition, she will avoid answering pointed questions about specific issues, and thus will not discuss anything that could generate a new burst of opposition.And her answers to questions relating to constitutional interpretation will likely be sufficiently banal "“ think of the recent nominees' statements that there is no "one size fits all" method of interpretation "“ that we won't learn much about her from the hearings.But it will be an opportunity for the public to focus on these vital questions.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.